You may have heard your office staff complain about an influx of calls from aggressive attorneys disputing invoices or complaining about the costs for patient copies of records. Believe it or not, this has nothing to do with rising litigation statistics. This is actually an unintended consequence of guidance released by the Department of Health and Human Services Office for Civil Rights (OCR). These changes can cause extra work and confusion for everyone involved – from the front desk staff to the administrators trying to wade through the changes to even the attorneys trying to interpret the law – so we’ve outlined a few important items to keep you in the know on “Right to Access.”
What’s the backstory?
Practices know patients have a legal right under HIPAA to a copy of their medical records and that “Right to Access” is not a new proposition. This law has been housed in 45 CFR 164.524 since 2004 with the enactment of the Standards for Privacy of Individually Identifiable Health Information (Privacy Rule). This rule permits a Covered Entity (or Business Associate) to charge a “reasonable, cost-based fee” for patient directed records requests. However, one of the OCR’s top complaints for years has been from patients unhappy about access to records, specifically taking issue with the timeliness of the request and the price tag.
This resulted in the OCR providing additional guidance in February 2016 in an attempt to curb complaints and increase patient satisfaction. According to the OCR guidance, record requests under Right to Access delivered by fax or mail could be charged a “reasonable, cost-based fee.” However, the OCR also stated at that time that patients requesting records to be delivered electronically could be charged no more than $6.50.
Just a few months later, in May 2016, the OCR produced a clarification. The $6.50 cap on EHR records delivered electronically was an option – not a mandate — should a Covered Entity or Business Associate prefer not to justify the cost-basis of their medical records charges by outlining the costs of labor, supplies, etc.
The unintended result of this additional guidance was an influx in attorneys demanding a copy of patient records for $6.50 and erroneously citing the HITECH Act as well as practices scrambling to wrap their head around how they could both afford to fulfill these records in a timely manner and keep up with all the other rising costs of managing a healthcare organization.
What does my practice need to know?
While the buzzword of the industry is “interoperability,” we are far from a records release being the result of a single click of a button. Practices understand the labor costs to release patient records from an EHR system – and $6.50 does not come close to covering the costs associated with a single transaction.
Prior to the additional OCR guidance in 2016, patients rarely cited Right to Access as a means to get their health information, but now, this type of request is more commonplace. The large spike in these requests is caused by third parties masking their requests as Right to Access requests, ostensibly in an attempt to save money. A request that would previously come as an authorization, like records going to an attorney, is more frequently being requested under Right to Access.
The OCR gave guidance on what labor a Covered Entity or Business Associate can charge relative to a records request: Labor for copying the records and sending them to the patient or third-party; materials such as paper, CD, USB drive; and postage when the request is to be delivered by mail. This of course does not take into account the immense labor and IT costs associated with ensuring the patient records are securely retrieved and distributed – which takes extensive Quality Analysis labor, IT labor and IT materials and infrastructure costs.
The OCR then provided guidance as to how a practice may calculate its “reasonable, cost-based fees” to charge for these Right to Access requests. A Covered Entity or Business Associate can use one of three methods:
- Calculate the actual costs incurred for each specific request;
- Determine the average costs for requests and charge each request based on this calculation; or
- Charge a flat fee that is capped at $6.50
As a provider, you are required to be able to show patient requestors supporting evidence as to how 1 and 2 above are calculated. To complicate this topic further, the OCR stated that you cannot charge costs for records delivered in an electronic method on a per page fee – despite the fact that EHRs still generate documentation per page!
Since 2016, ScanSTAT has used the average cost methodology to determine what to charge for Right to Access requests. However, the amount of work and time it takes to analyze the cost data and develop the fair pricing model is more than many healthcare organizations can or want to bear.
What can I do about Right to Access requests and angry requestor inquiries?
Patient Right to Access is just one more thing in a mountain of tasks, initiatives and action items facing today’s providers and healthcare systems. While you could try to keep up with the latest guidance, calculate all your allowable costs, take the requestor calls and create the appropriate documentation, there may be a better way. ScanSTAT has a team of professionals to serve your release of information needs including…
- Compliance specialists who monitor OCR updates and respond to your requestors questioning the fees
- Customer care representatives to field phone calls from not-so-nice law firms and requestors
- Business analysts who track expenses and can create the appropriate cost models and documentation
- Quality assurance team members to confirm your requests are complete and accurate
Release of information is not as simple as it once was. If you’re finding the costs are now outweighing the benefits of keeping records fulfillment in-house, talk with us today.